New FOIA Bill in Michigan Addresses Better Compliance, Fees

[XLFD]

September 11, 2012 might just emerge as a day that will live in infamy at the Ludington City Hall.  Just after the day 51st Circuit Court Wickens made an egregious ruling over two citizen plaintiff's FOIA complaint, and awarded the City of Ludington nearly $700 in FOIA fees for public records that were never provided to plaintiffs, then brayed about that victory that very night at their City Council meeting two things were put into motion the very next day.

Unlike the terrorist actions that occurred elsewhere that day resulting in the deaths of four Americans or the event that killed thousands eleven years prior, these two events could result in victories for Americans everywhere who are fed up with the encroachment of their rights by an untransparent, secret government bent on flexing their power at the expense (in all manners) of the people. 

The first involved the filing in federal court of a lawsuit made to address the arbitrary and capricious decision made by the Ludington City Manager, Mayor, and City Council to restrict any citizens access to any public place without any sort of due process recognized by true Americans.  The City Manager John Shay then imposed that on someone who used the Freedom of Information Act (FOIA) to find out more about their government.

The Workplace Safety Policy created made it impossible for that citizen to attend most public functions happening in Ludington, inspect any public records normally accessible by FOIA at either the City Hall or police department, and even the right for that citizen to vote in two elections.   Such acts by the City Manager are threatening and intimidating to all citizens and is a government sponsored form of terrorism perpetrated on the whole community, silencing discourse protected by the First Amendment, and diminishing protections afforded by the Fifth and Fourteenth Amendment.

The second is a potentially bigger defeat for the forces at Ludington City Hall who have decided to make the very act of asking for looking at public records a reason to attack private citizens and ask for fees that should not apply.  A lawmaker, Mike Shirkey of Jackson, introduced, read, and presented to committee a revision of the original State FOIA law which addresses many of the ambiguities of that Act, which John Shay, Ludington's FOIA Coordinator, has exploited for unlawfully holding back records or charging fees.

Amending the existing law, here is a brief recap of what it would do, if passed in its original form, followed in parentheses by what happens in the City of Ludington (COL) or how it may affect past or future actions here:

-- Costs per copy made by the public body would be limited to 10 cents per page (COL charges $.25, some places charge even more)

-- The public body shall not charge a fee for copying during an on-site inspection unless the person requests the public body to provide copies or the person requests and uses the public body’s equipment to make the copies.  (COL's latest tact has been to make copies for inspection, and charge accordingly, this explicitly prohibits that, exempt records or not)

-- New Section 5(8) that requires the public body to produce the copies of the documents or make the documents available for inspection by the 5 business day (or 10 day extension) deadline.   The fee is reduced by 20% for each day that the documents are not available past the deadline. The public body will not get paid at all if the documents are more than 5 days late. There is no exemption for voluminous requests or requests that require a great deal of redaction. Section 5(8) does clarify that the deadlines are extended and no charge reduction is required during the time that a public body is waiting for the payment of a deposit.  (the COL currently does not allow you to look at the records even if the request does not warrant a deposit.)  

-- Specifically allows the requester to appeal or file a circuit court action over the fee charged by a public body.  Currently, challenges involving fees are not specifically addressed by the FOIA.  (Court precedent has allowed challenges to fees, but it usually was coupled with other issues.  This solidifies that rule, which was challenged by the COL in our FOIA case.)

-- Limits the public body from charging more than $100.00 for all requests submitted by a requesting person within a 6 month period.  (This would be nice for frequent users of FOIA, but unless clarified further, I think it's unnecessary and potentially costly for the public body.  The COL currently charges an outrageous fee for simple requests; if this is enacted, I can make two payments of $100 per year to see and have copied whatever I want.  I could live with that.)

-- If documents were properly exempt from disclosure but for a different reason than the one cited by the public body, the public body can not raise that different exemption as a defense at trial.  (The COL's form letter for exemptions should be revised to reflect this, as it can list many exemptions, but not as to what records they apply to, which is confusing when there are several types of records and exemptions.)

-- Requires the court to award attorney's fees and costs when a requester prevails in part whether on the substantive denial or on the request for a reduction of fees; currently, the court has discretion or "may" award the fees if the request was improperly denied in part. Also, currently the FOIA has no attorneys’ fee recovery for fee challenges.  (The COL's 'rubber stamp' denials on my administrative appeals may be revised when they see each of them go to court for illegal procedures and fees, and the awarding of such to the successful appellant.)

-- Punitive damages are increased from $500 to $5,000.00 for “arbitrary and capricious violations” of the FOIA.  (The $500 amount had been in effect since the FOIA law went into effect, it's worth increasing, to encourage compliance by the public body, and encourage those who may appeal but can't afford to.)

This bill is a good start, but I would ultimately like more accountability on the public officials in the public body that willingly violate this act, rather than just the public body in full.  They need to have some culpability via this act if they willfully withhold public records or do some other act of omission that erodes the public confidence in the public body they're a part of. 

 We will try to keep an eye on its progress.

[XLFD]

I forgot to include   the actual bill  and a couple of editorials strongly endorsing the bill from the  Lansing State Journal and even an endorsement by a local government.  Still no endorsements from the COLDNews or Ludington FOIA Coordinator

[Willy]

I think your last suggestion is a very good one. Public officials should be held personally accountable for violations of the FOIA. Don't hold your breath waiting for any endorsement from LDN for this new legislation. They might not even have an article about it since they seem to be anti-FOIA for the common citizen but not for themselves. I'm curious as to wheather  LDN is even required to file FOIA's since they're in bed with local authorities.

[XLFD]

Henderson, Shay, Begnoche, Evans, etc. --they sure have big beds.  I have been boning up on FOIA recently including a recent finding up in Petoskey where the plaintiff's attorney was held up for discipline by including individuals along with the public body who neglected to reply to FOIA requests properly.   But you can't hold any individual public official accountable even if he's cost the taxpayer thousands for not following FOIA law, the lawsuit has to be against the public body.   

[AQUAMAN]

Very interesting reading and hopefully, new law. Let's all hope it has the support it deserves and needs.

[XLFD]

I predict it will be changed by the time it comes out of committee, but a revision is long overdue, to stress the basics, and correct the parts of the law that are being exploited by those who want to keep public records secret.